Chattisgarh High Court
Deo Chandra Dubey vs Gangotri Tiwari on 6 January, 2010
Author: Sunil Kumar Sinha
Bench: Rajeev Gupta, Sunil Kumar Sinha
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Revision No. 345 of 2002
Deo Chandra Dubey
...Petitioners
Versus
1. Gangotri Tiwari
2. Malti Devi
3. Rakesh Kumar
4. The State of Chhattisgarh
...Respondents
(Criminal Revision under Section 397/401of The Code of
Criminal Procedure)
! Mr. Atanu Ghosh, Advocate for the petitioner
^ Mr. N.K. Chatterjee, Advocate for respondents 1 to 3.
Mr. Sudhir Bajpai, Dy. Govt. Advocate, for the State/respondent No.4.
Honble Shri Rajeev Gupta,Honble Shri Sunil Kumar Sinha, J
Dated:06/01/2010
: Judgment
JUDGMENT
(06.01.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha, J.
(1) Being aggrieved with the judgment of acquittal dated 24.4.2002 passed by the Additional Sessions Judge, Baikunthpur, District Korea (C.G.) in Sessions Trial No. 6/2002, the petitioner/father of the deceased has filed this criminal revision.
(2) The facts, briefly stated, are as under:-
Deceased Rupa Tiwari was the wife of respondent No.3. Respondent No. 1 is the sister-in-law (Nanad) and respondent No.2 is the mother-in-law of the deceased. The deceased was married with respondent No.3 on 19.5.1996. She was residing in her in-laws place along with respondents 1 to 3.
The case of the prosecution is that on 3.9.2001 respondent No.2, Malti Devi, asked Prabhakar Daurey (PW-3, a neighbour) that her daughter-in-law deceased Rupa was not well, therefore, he should call some Doctor. Prabhakar Daurey (PW-3) while going on his scooter to call the Doctor saw that respondent No.3, Rakesh Kumar, was sitting near the video-hall. He informed him about the illness of the deceased. Respondent No.3 and Prabhakar firstly went to the house of Dr. A.K. Singh and thereafter Prabhakar send respondent No.3 to his house and he went to Dr. Gopal Krishna Vishwas (PW-5). Dr. Vishwas came to the house of the deceased and saw injuries on her body. He advised to take the deceased to Government Hospital. The deceased was taken to the Government Hospital in the vehicle of Sapan Kumar Dhanoria (PW-9). She was examined by Dr. A.K. Sharma (PW-10), who declared that she was dead. Dr. A.K. Sharma wrote a memo (Ex.-P/8) to the concerned police station giving information of the dead body brought to the hospital. By that time the body was taken to the house. The police recorded merg intimation (Ex.-P/17). After giving notice to the Pachas, inquest on the body of the deceased was prepared under Ex.-P/5. The dead body was sent for its post-mortem to Government Hospital, Patana, where the post-mortem examination was conduct by a team of two Doctors, who gave their report Ex.-P/7. The Autopsy Surgeons found many external injuries on the body of the deceased and opined that the cause of death was asphyxia due to strangulation which may be caused by firm string encircling the neck. The death was homicidal in nature.
The prosecution filed the charge-sheet u/ss 302, 201 read with Section 34 IPC.
The learned Sessions Judge framed charges u/ss 498-A, 304-B alternatively 302 & 201 of the IPC.
The prosecution examined 21 witnesses. The learned Sessions Judge held that the prosecution could not establish that either the deceased was treated with cruelty by respondents 1 to 3 or it was a case of dowry death or murder. Therefore, respondents 1 to 3 were acquitted of the charges framed against them. (3) Mr. Atanu Ghosh, learned counsel appearing on behalf of the petitioner, argued that the learned Sessions Judge failed to consider material evidence on record, therefore, the judgment is bad-in-law. He also argued that since the deceased was found in injured/dead condition in the house of respondents 1 to 3, therefore, they should have offered explanation for the same, failing which, a grave circumstance was established against them. (4) On the other hand, Mr. N.K. Chatterjee, learned counsel appearing on behalf of respondents 1 to 3, opposed these arguments and supported the judgment passed by the Sessions Court.
(5) Mr. Suhdir Bajpai, learned Dy. Govt. Advocate appearing on behalf of the State/respondent No.4, supported the contentions raised by the counsel for the petitioner. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case.
(7) The learned Sessions Judge has recorded a positive finding vide Para-17 of the impugned judgment that the death of the deceased was homicidal in nature. He has further held vide Para-19 that on the evidence of Kanta Yadav (PW-1) it was established that the deceased died in between 12 in the Noon & 5.00 p.m. The learned Sessions Judge also recorded a finding vide Para-43 of the impugned judgment that the prosecution could not establish that respondents 1 to 3/accused persons were present in their house along with the deceased from 12 Noon to 5.00 p.m. on 3.9.2001. Therefore, the liability of injuries or death cannot be fastened on the respondents.
(8) After going through the entire evidence available on record, we do not find that it was proved that respondents 1 to 3 were present in the house along with the deceased in between 12 Noon to 5.00 p.m. on 3.9.2001. In Para-7 of the examination-in-chief of I.O., R.P. Singh (PW-21), specific Court question was asked about the investigation made to find out regarding presence of the accused persons. Investigating Officer has replied that there is no evidence on record to establish that the accused persons were present in their house at the time of the incident. Specific questions have been asked in the examinations of the accused persons regarding their presence in the house vide questions No. 70 & 74 and they have replied that they had gone to different places and they were present in the house only upto 10.30 - 11.00 a.m. and not thereafter. (9) In Trimukh Maroti Kirkan -Vs- State of Maharashtra, 2006 AIR SCW 5300, the Apex Court held that:
". If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Court. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S. 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In case of no explanation or false explanation it would because an additional link in chain of circumstances. "
(10) Further in State of Rajasthan -Vs- Kashi Ram, 2006 AIR SCW 5768, the Apex Court held that:
"Whether an inference ought to be drawn under Section 106 is a question which must be determined by reference to facts proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. The respondent, accused having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by S. 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."
The Court further held that:
".The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd's case reported in AIR 1960 Madras 218."
(11) In the present case, though it comes that respondents 1 to 3 were ordinarily residing with the deceased in the same house, but it does not come that they were lastly seen with the deceased. Had there been a case that respondents 1 to 3 or any one of them was lastly seen with the deceased and thereafter the deceased was found dead, then of course, burden was upon them to prove what happened thereafter, since those facts were within the special knowledge of the accused person(s) who was lastly seen with the deceased and in such a situation, if the accused person(s) failed to explain about it, then it would have been held that they failed to discharge the burden cast upon them by Section 106 of the Evidence Act. There is a finding that the incident took place in the day time in between 12 Noon to 5.00 p.m. Had that been the incident of the night, the situation would have been different as there would have been a presumption that all the inmates would be present in the house. But in the day time, no such presumption can be drawn especially when the inmates have offered their explanation in specific words that they were not present in the house and were present at a particular place and no investigation was conducted to find out the truth. Therefore, the arguments advanced in this regard cannot be accepted.
(12) Devendra Chandra Dubey (PW-14, father of the deceased) and Trinetra Kumar Dubey (PW-4, brother of the deceased) had tried to make out a case regarding demand of dowry and treating the deceased with cruelty on account of demand of dowry. Their evidence has been discussed in Para-35 of the impugned judgment. The learned Sessions Judge has held that they have given different versions than what were given before the police u/s 161 Cr.P.C. (Ex.-D/1 & D/2) and there were material omissions on these points. Therefore, the facts relating to demand of dowry and treating the deceased with cruelty on account of demand of dowry were rightly held to be not established. Lalit Kumar Mishra (PW-16) is the maternal uncle of the deceased. He has categorically deposed vide Para-3 of the examination-in-chief that respondents/accused persons had never demanded dowry after the marriage of the deceased with respondent No.3 and they have never treated the deceased with cruelty. This further strengthen the fact that the prosecution could not establish that either there was demand of dowry or the deceased was being treated with cruelty by the accused persons on account of demand of dowry.
(13) Admittedly, there are no eye witnesses and the case is based on circumstantial evidence. In Dhananjoy Chhatterjee
-Vs- State of W.B., (1994) 2 SCC 22, the Apex Court held that "In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." (14) After scrutiny the entire evidence, we find that no incriminating circumstances have been established against respondents 1 to 3 in this matter so as to hold them conclusive and not capable of being explained by any other hypothesis except guilt of the accused persons/respondents 1 to 3.
(15) The revisional power of the High Court under Section 397 read with Section 401 does not create any right in the litigant, but only conserves the power to see that justice is done and the subordinate Courts do not exceed jurisdiction or abuse their powers. The order of lower Court ought not to be lightly set aside unless it has entailed miscarriage of justice or where two views are possible merely because the revisional Court takes the other view. It is only in glaring cases of injustice, resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct a re-trial of the acquitted accused. The mere circumstances that a finding of fact recorded by the trial Court may, in the opinion of the High Court, be wrong, will not justify setting aside the acquittal and directing re-trial. The revisional court is entitled to reverse the finding only when it reaches to the conclusion that finding of the trial Court is perverse and the jurisdiction cannot be invoked lightly. Even in the cases where it is possible to take two views on the same matter then in the ordinary course the view taken by the Court below should not be interfered in the revisional jurisdiction.
(16) In the opinion of this Court, the Sessions Court has taken a view and has recorded a finding, which appears to be one of the possible views which could have been taken by a Court in the facts and circumstances of the case. Therefore, we do not find any reasons to interfere with such finding recorded by the Sessions Court. (17) The Revision has no merit, the same is liable to be dismissed and is hereby dismissed.
CHIEF JUSTICE JUDGE